Vanga v. Gluckman CA2/8

Filed 2/1/23 Vanga v. Gluckman CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

RODERICK EARL VANGA, B304687

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC702702
v.

RICHARD S. GLUCKMAN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory W. Alarcon, Judge. Conditionally
reversed and remanded with directions.
Steven J. Cooper for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
Reback, McAndrews & Blessey, Raymond L. Blessey and Tracy
D. Hughes for Defendants and Respondents.
__________________________
 INTRODUCTION

When plaintiff and appellant Roderick Earl Vanga, a
federal prisoner, started to lose his eyesight, the prison called in
a neurologist, Dr. Richard S. Gluckman, to examine him. But
Vanga’s treatment was delayed, and he ultimately went legally
blind in both eyes. Vanga, acting in propria persona, sued
defendants and respondents Dr. Gluckman and Richard S.
Gluckman, M.D., Inc. (collectively Gluckman) for professional
negligence, contending that Gluckman had unreasonably delayed
providing a diagnosis and treatment plan to the prison, and, but
for the delay, Vanga wouldn’t have lost his sight.
Vanga, who was not only incarcerated and blind but also
indigent, asked the trial court to appoint counsel to represent
him. The court denied the request.1 When Gluckman moved for
summary judgment, Vanga moved for appointment of a medical
expert. The court denied that request as well, holding that
Vanga had not made a sufficient showing of necessity. The court
held that Vanga’s “claims that he is in custody, visually disabled,
and indigent are not a sufficient basis alone for this court to
exercise its discretion to appoint an expert at public expense . . .
[and] there is no evidence that this action involves an extremely
complicated area of medicine which would warrant an increased
state interest for a court appointed expert.” The court then
granted summary judgment for Gluckman, holding that Vanga
had not rebutted Gluckman’s declaration that the doctor’s actions
fell within the standard of care because Vanga had not provided
contrary expert testimony.

1 Vanga has since obtained counsel.

2
 On appeal, Vanga argues that the court’s refusal to appoint
a medical expert deprived him of meaningful access to the
courts.2 We agree. We therefore conditionally reverse the
judgment and remand with directions.

BACKGROUND

1. Factual Background
Vanga was an inmate at the Federal Correctional Institute
(FCI) Terminal Island when he began suffering vision loss.
Gluckman, a board-certified neurologist, was brought in to
examine him.
Gluckman examined Vanga’s right eye on January 28,
2016. Gluckman diagnosed Vanga with optic neuritis and
prescribed intravenous injections of Solu-Medrol, a drug whose
common name is Methylprednisolone, an anti-inflammatory
steroid, for four or five days and that he begin taking Aubagio,
whose common name is Teriflunomide, a medication used to treat
multiple sclerosis. Gluckman declared that he provided his
diagnoses, suggestions, and other findings regarding the
examination to the medical office at FCI Terminal Island on
February 1, 2016. But Venga’s complaint alleges that the
treatment plan was not delivered until February 16, 2016.
In any event, treatment began on March 24, 2016.
Gluckman evaluated Vanga again on August 25, 2016, this
time focusing on the left eye. Gluckman again diagnosed Vanga
with optic neuritis. This time, he prescribed six months of
intravenous injections of Solu-Medrol for two consecutive days

2 Because this issue is dispositive, we do not address Vanga’s
additional claims of error.

3
per month. Gluckman declared that he provided his diagnoses,
suggestions, and other findings regarding the examination to the
medical office at FCI Terminal Island on August 27, 2016.
Venga, however, alleges that the treatment plan was not
delivered to the prison until November 15, 2016. Treatment
began on November 16, 2016.
Vanga is now legally blind in both eyes.
2. Complaint
Vanga filed the operative verified complaint on April 17,
2018, asserting professional negligence. He alleged that
Gluckman delayed delivery of the two treatment plans to the
prison for an unreasonable length of time and that these delays
caused him to suffer permanent vision loss.
By his action, Vanga sought to recover general damages,
compensatory damages, and costs of suit.
3. Summary Judgment Proceedings
Gluckman moved for summary judgment on the ground
that the care and treatment provided to Vanga was within the
applicable standard of care, and no act or omission by Gluckman
caused or contributed to Vanga’s injuries. Gluckman also argued
that Vanga’s claims were barred by the statute of limitations.
Vanga opposed the motion, arguing that Gluckman’s actions were
not within the applicable standard of care. Vanga filed a
concurrent request for appointment of a medical expert.
The court heard the motion on July 23, 2019. Vanga
appeared telephonically. The court took under submission both
Gluckman’s motion for summary judgment and Vanga’s request
for expert witnesses. Then, on August 13, 2019, the trial court
issued a written order denying Vanga’s request for court-

4
appointed experts and granting the motion for summary
judgment.
4. Judgment and Appeal
Vanga filed a motion for reconsideration, which the court
denied.
The court signed and entered a judgment in favor of
Gluckman on January 2, 2020. Vanga timely appeals.

DISCUSSION

Vanga contends the court’s refusal to appoint a medical
expert to contest summary judgment deprived him of meaningful
access to the courts. We agree.
1. Standard of Review
We review the denial of Vanga’s motion for appointment of
a medical expert for abuse of discretion. (Wantuch v. Davis
(1995) 32 Cal.App.4th 786, 792–793 (Wantuch); People v. Garcia
(2016) 5 Cal.App.5th 640, 655.)
The standard of review of an order granting summary
judgment is well established. “The purpose of the law of
summary judgment is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) The moving party “bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to
judgment as a matter of law.” (Id. at p. 850; Code Civ. Proc.,
§ 437c, subd. (c).) The pleadings determine the issues to be
addressed by a summary judgment motion. (Nieto v. Blue Shield

5
of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60,
74.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) In performing an independent review of the granting of
summary judgment, “we follow the traditional three-step
analysis. ‘We first identify the issues framed by the pleadings,
since it is these allegations to which the motion must respond.
Secondly, we determine whether the moving party has
established facts which negate the opponents’ claim and justify a
judgment in the movant’s favor. Finally, if the summary
judgment motion prima facie justifies a judgment, we determine
whether the opposition demonstrates the existence of a triable,
material factual issue. [Citation.]’ ” (Shamsian v. Atlantic
Richfield Co. (2003) 107 Cal.App.4th 967, 975.) “We need not
defer to the trial court and are not bound by the reasons in its
summary judgment ruling; we review the ruling of the trial court,
not its rationale.” (Oakland Raiders v. National Football League
(2005) 131 Cal.App.4th 621, 630.)
2. The Right to Meaningful Access to the Courts
The California Supreme Court has held that “there is no
dispute that prisoners have a constitutional right of access to the
courts [citation] and that ‘absent a countervailing state interest
of overriding significance, persons forced to settle their claims of
right and duty through the judicial process must be given a
meaningful opportunity to be heard’ [citation] . . . .” (In re

6
Jesusa V. (2004) 32 Cal.4th 588, 601.) The Penal Code codifies
this right of access to the courts by declaring that incarcerated
plaintiffs may “initiate civil actions . . . .” (Pen. Code, § 2601,
subd. (d).) This means that “a prisoner may not be deprived, by
his or her inmate status, of meaningful access to the civil courts if
the prisoner is both indigent and a party to a bona fide civil
action threatening his or her personal or property interests.”
(Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483 (Apollo).)
Trial courts have broad discretion to fashion measures
designed to vindicate the right to fair access to the courts.
(Apollo, supra, 167 Cal.App.4th at pp. 1483–1484, citing
Wantuch, supra, 32 Cal.App.4th at pp. 792–793.) In exercising
their discretion, courts must be guided by “ ‘principles of
providing in propria persona litigants with meaningful access to
the courts and of deciding bona fide civil actions on their
merits.’ ” (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 469
(Smith), quoting Apollo, at p. 1487.)
“The exercise of a trial court’s discretion is guided by a
three-step inquiry established in published appellate decisions.
[Citations.] First, the trial court determines whether the
prisoner is indigent. Second, the court determines whether the
lawsuit involves a bona fide threat to the inmate’s personal or
property interests. If both conditions are satisfied, the trial court
must consider the measures available to protect appellant’s right
of meaningful access to the courts, including the appointment of
counsel.” (Smith, supra, 38 Cal.App.5th at p. 458.) Ultimately,
“a trial court must examine the totality of the circumstances
when making the discretionary determination of whether an
inmate’s access is being impeded.” (Id. at p. 470.)

7
 Trial courts do not have discretion to do nothing “ ‘where
the prisoner’s civil action is bona fide and his or her access to the
courts is being impeded,’ ” but there are few bright-line rules.
(Smith, supra, 38 Cal.App.5th at p. 468) Although
“ ‘[m]eaningful access to the courts is the “keystone” of an
indigent prisoner’s right to . . . prosecute bona fide civil actions,’
such right ‘ “does not necessarily mandate a particular remedy”
to secure access.’ [Citations.] For example, a prisoner may not
compel the trial court to appoint counsel on his or her behalf.
[Citation.] Nor may a prisoner ordinarily compel his or her
appearance in court. [Citation.] Nonetheless, several
alternatives to those remedies are available to the trial courts in
order to ensure indigent prisoner litigants are afforded
meaningful access to the courts, including: ‘(1) deferral of the
action until the prisoner is released [citation]; (2) appointment of
counsel for the prisoner [citations]; (3) transfer of the prisoner to
court [citations]; (4) utilization of depositions in lieu of personal
appearances [citations]; (5) holding of trial in prison [citation];
(6) conduct of status and settlement conferences, hearings on
motions and other pretrial proceedings by telephone [citation];
(7) propounding of written discovery; (8) use of closed circuit
television or other modern electronic media; and
(9) implementation of other innovative, imaginative procedures.
[Citations.]’ ” (Apollo, supra, 167 Cal.App.4th at p. 1483.) As
relevant here, “the discretionary appointment of an expert
pursuant to Evidence Code section 730 is among the measures
available to trial courts to ensure indigent prisoner litigants are
afforded meaningful access to the courts.” (Smith, supra, 38
Cal.App.5th at p. 459.)

8
3. Proceedings Below
Alongside his opposition to Gluckman’s motion for
summary judgment, Vanga filed a request for appointment of a
medical expert under Evidence Code section 730. Citing Apollo,
supra, 167 Cal.App.4th 1468, Vanga “specifically request[ed] an
Ophthalmologist, and/or a Neuro-Ophthalmologist, and/or a
Visual Scientist, to investigate specific medical details presented
in the instant action, and subsequently prepare a report for the
Court regarding their findings.” He included a supporting
declaration in which he swore that he was incarcerated in federal
custody, legally and permanently blind in both eyes, and
“indigent and without funding to afford an expert witness to
corroborate the applicable standard of care as practiced by the
prevailing medical community regarding treatment of optic
inflammatory conditions. Also, the consequence of non-
compliance with said standard.” Due to these disabilities, he
declared himself “unable to properly and effectively litigate in the
instant action without requisite expert testimony.”
Considering the appointment motion alongside Gluckman’s
summary judgment motion, the court denied the request. First,
the court declined to exercise its discretion under the authority
granted to it by Evidence Code section 730.3 The court explained:

3 Evidence Code section 730 provides: “When it appears to
the court, at any time before or during the trial of an action, that
expert evidence is or may be required by the court or by any
party to the action, the court on its own motion or on motion of
any party may appoint one or more experts to investigate, to
render a report as may be ordered by the court, and to testify as
an expert at the trial of the action relative to the fact or matter as
to which the expert evidence is or may be required. The court

9
“It is within the trial court’s discretion under Evidence Code
§ 730 to determine whether an expert is needed. (Collins v.
Superior Court (1977) 74 Cal.App.3d 47, 52 [(Collins)].) ‘There is
nothing in our law which makes it mandatory for a trial court to
appoint a medical expert in any case,’ and as is the case with any
use of public funds to assist a litigant, there must be a showing of
necessity. (Pink v. Slater (1955) 131 Cal.App.2d 816, 817–818
[(Pink)]; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 320
[(Corenevsky)].) [¶] Under the facts and circumstances of this
case, plaintiff has not made a sufficient showing of necessity.
Plaintiff has not indicated with any specificity the issues
requiring expert testimony or how the testimony will be helpful
to the trier of fact.”4

may fix the compensation for these services, if any, rendered by
any person appointed under this section, in addition to any
service as a witness, at the amount as seems reasonable to the
court.”

4 Although the court is correct that Evidence Code section
730 is not prescriptive, each case the court cited predates Apollo
and Wantuch by several decades, and none concerns the right of
access to the courts by indigent civil plaintiffs. Collins involved
the court’s denial of a request to appoint an expert in a
dependency proceeding to interpret the statements made by an
offending mother to her lawyer. (Collins, supra, 74 Cal.App.3d at
pp. 51–52.) Pink was a medical malpractice case in which the
appellate court stated, without elaboration, that appointment of
an expert was not absolutely required under the statute and “[n]o
abuse of discretion appears here.” (Pink, supra, 131 Cal.App.2d
at p. 818.)
Finally, in Corenevsky, a death penalty case, the Supreme
Court held that the trial court erred by not approving defense

10
 Turning to Vanga’s assertion of his right of access to the
courts, the court wrote: “Further, although plaintiff cites to
Apollo[, supra, 167 Cal.App.4th at p.] 1487, in asserting that the
court has an obligation to ensure that poor and incarcerated
litigants have meaningful access to the courts, Apollo also noted
that ‘while “[m]eaningful access to the courts is the “keystone” of
an indigent prisoner’s right to . . . prosecute bona fide civil
actions,” such right does not necessarily mandate a particular
remedy to secure access. [Citations omitted.] For example, a
prisoner may not compel the trial court to appoint counsel on his
or her behalf.’ (Id. at [p.] 1483.) Plaintiff’s claims that he is in
custody, visually disabled, and indigent are not a sufficient basis
alone for this court to exercise its discretion to appoint an expert
at public expense. Lastly, there is no evidence that this action
involves an extremely complicated area of medicine which would
warrant an increased state interest for a court appointed expert.
Plaintiff’s request for a court appointed expert, therefore, is
denied.”

counsel’s request for court-appointed law clerks. (Corenevsky,
supra, 36 Cal.3d at pp. 318–320.) Although the court noted that
Evidence Code section 730 does “not directly provide for court-
ordered investigators, law clerks, or enumerated experts other
than expert witnesses generally,” it emphasized that “the right to
such services is to be inferred from at least two statutes
respecting an indigent defendant’s statutory right to legal
assistance; and more fundamentally, such court-ordered defense
services may be required in order to assure a defendant his
constitutional right not only to counsel, but to the effective
assistance of counsel.” (Id. at p. 319, fn. omitted.)

11
 In short, the trial court did not disagree that Vanga was
indigent, incarcerated, and blind or that he had a bona fide claim
of medical malpractice. Instead, the court denied the motion
based on its conclusion that Vanga had not made a sufficiently
specific showing of necessity.
The court then proceeded to Gluckman’s motion for
summary judgment. It spent a page laying out Vanga’s
allegations and the elements of medical malpractice, then noted:
“ ‘Both the standard of care and defendants’ breach must
normally be established by expert testimony in a medical
malpractice case.’ [Citation.] [¶] Thus, in a medical malpractice
case, ‘[w]hen a defendant moves for summary judgment and
supports his motion with expert declarations that his conduct fell
within the community standard of care, he is entitled to
summary judgment unless the plaintiff comes forward with
conflicting expert evidence.’ [Citation.] An expert declaration, if
uncontradicted, is conclusive proof as to the prevailing standard
of care and the propriety of the particular conduct of the health
care provider. [Citation.] ‘[A]n opinion unsupported by reasons
or explanations does not establish the absence of a material fact
issue for trial, as required for summary judgment.’ [Citations.]
The absence of opinion evidence on this issue is fatal to the
plaintiff’s cause of action. [Citation.]”
The court explained that here, “Gluckman submit[ted] his
own expert declaration opinion based on his education, training,
experience, and review of materials, that [he] met the applicable
standard of care at all times during the care and treatment of
plaintiff. [Citation.] Dr. Gluckman testifies as both a fact
witness and an expert witness.”

12
 After reviewing Gluckman’s declaration, the court
concluded: “The court, therefore, finds that based on defendants’
evidence, Dr. Gluckman’s treatment of plaintiff was within the
applicable standard of care, and nothing he did or failed to do
substantially contributed to plaintiff’s injuries. [Citation.] The
burden shifts to plaintiff to offer contrary expert testimony
demonstrating that the defendant’s care and treatment did fall
below the standard of care. [Citation.]”
Although the court acknowledged Vanga’s “conten[tion]
that there are disputed issues of fact concerning Dr. Gluckman’s
alleged failure to adhere to acceptable standards of care,” it
emphasized that Vanga “fail[ed] to provide any expert evidence to
contradict defendants’ evidence that provides that
Dr. Gluckman’s conduct fell within the applicable standard of
care.” And although Vanga had attempted to fulfill the expert-
witness requirement by presenting “alleged statements made by
various other medical professionals,” these statements were “not
expert opinion and [were] insufficient alone to establish a triable
issue of material fact.”5
To be sure, Vanga also attempted, in the alternative, to
proceed without an expert by arguing that “the alleged conduct
concerns matters of common knowledge which does not require

5 In his declaration in support of his opposition to
Gluckman’s motion for summary judgment, Vanga stated: “I am
aware of the contingent requirement for conflicting expert
evidence in a malpractice/negligence action, and as a result, I
have provided conflicting medical evidence to the Defendant
during the course of pretrial, and now said documents are
presently part of the record.” The declaration attached medical
records from other treating physicians.

13
expert evidence . . . .” But, the court rejected that approach,
emphasizing that “issues concerning plaintiff’s diagnosis and
medication dosage are matters that are peculiarly within the
knowledge of experts and can only be established by their expert
evidence. [Citation.] Thus, plaintiff’s claims concerning Dr.
Gluckman’s conduct falling below the applicable standard of care
requires expert testimony. [Citation.]”
As to causation, the court noted that Vanga had provided
letters from prison medical staff stating that they did not receive
diagnostic reports from Gluckman until weeks or months after
Gluckman claimed to have sent them. But the court held, “this is
not evidence that any conduct by Dr. Gluckman caused a delay,
or that such delay caused any harm to plaintiff.” Since
Gluckman had declared that Vanga’s vision loss was permanent
by the time Gluckman examined him the second time,
“[t]herefore, there is no expert evidence that any alleged delay by
Dr. Gluckman in providing his suggestions, diagnoses, or findings
to the FCI Terminal Island medical office in any way caused
plaintiff harm.”
In sum, the court concluded: “Based on the foregoing,
defendants’ expert’s declaration is conclusive proof as to the
prevailing standard of care and the propriety of Dr. Gluckman’s
conduct under the circumstances, and plaintiff’s absence of
evidence on this issue is fatal to his cause of action. [Citation.]
Defendants, consequently, are entitled to summary judgment.
[Citation.]”
4. The court abused its discretion by denying Vanga’s
motion for a medical expert.
“ ‘[A] trial court does not have discretion to choose no
remedy in cases where the prisoner’s civil action is bona fide and

14
his or her access to the courts is being impeded.’ ” (Smith, supra,
38 Cal.App.5th at p. 468, quoting Apollo, supra, 167 Cal.App.4th
at p. 1484, fn. omitted.) Here, the court erred when it denied
Vanga’s motion for appointment of a medical expert even while
requiring medical expert testimony to oppose a motion for
summary judgment. (Hulbert v. Cross (2021) 65 Cal.App.5th 405,
416 (Hulbert).)
Smith is instructive. In that case, the trial court “stated it
was without authority to appoint an attorney for a plaintiff in a
civil case, and denied the motion. Subsequently, the trial court
granted defendants’ motion for summary judgment because
Smith, as he predicted, did not obtain a medical expert’s
declaration contradicting the opinion of defendants’ expert that
the care provided Smith met the applicable standard of care.”
(Smith, supra, 38 Cal.App.5th at p. 458.)
The Smith court reversed, holding that where a prisoner
establishes both indigence and that the legal action involves a
bona fide threat to the inmate’s personal or property interests,
“the trial court must consider the measures available to protect
appellant’s right of meaningful access to the courts, including the
appointment of counsel. Where the indigent prisoner’s civil
action is bona fide and his or her access to the court is being
impeded, a trial court must provide a remedy; it may not choose to
do nothing.” (Smith, supra, 38 Cal.App.5th at p. 458, italics
added.)
Likewise, in Hulbert—a case published after the trial
court’s denial of rehearing in this matter—the appellate court
reversed the denial of an indigent litigant’s request to appoint an
expert on summary judgment in a medical malpractice case.
(Hulbert, supra, 65 Cal.App.5th 405.) Hulbert reasoned that the

15
plaintiff’s “cause of action for medical malpractice requires proof
regarding the standard of care. ‘Both the standard of care and a
defendant’s breach must normally be established by expert
testimony in a medical malpractice case.’ [Citation.] By denying
[the plaintiff’s] request for the appointment of a medical expert,
the trial court effectively blocked [his] access to the courts for his
sole claim by requiring the very thing the trial court denied to
him.” (Id. at pp. 416–417.)
To be sure, in both Smith and Hulbert, the trial courts
operated under the mistaken belief that they lacked discretion to
appoint a medical expert. (Smith, supra, 38 Cal.App.5th at
p. 458; Hulbert, supra, 65 Cal.App.5th at p. 417.) Here, however,
the court understood its authority. Nevertheless, we find Smith
and Hulbert persuasive and adopt their reasoning.
The parties do not dispute that Vanga was an indigent
prisoner with a non-frivolous malpractice claim against
Gluckman. To prevail on summary judgment, Vanga was
required to present the testimony of a medical expert, which he
could not afford. Unlike Gluckman, Vanga was not a doctor and
could not pen such a declaration himself. Vanga attempted to
meet the requirement by presenting evidence from people who,
though not acting as expert witnesses, possessed the requisite
expertise. He also presented a theory under which he could
prevail without expert testimony. But ultimately, recognizing
“the contingent requirement for conflicting expert evidence in a
malpractice/negligence action,” Vanga asked the court to appoint
an expert for him. The court held that it was impossible for
Vanga to prevail on summary judgment without expert
testimony, but nonetheless denied the request. On these facts,

16
we conclude the court abused its discretion and denied Vanga
meaningful access to the courts.
5. The error was prejudicial.
Wantuch, Apollo, and their progeny do not establish the
standard of prejudice appellants must meet when they have been
deprived of meaningful access to the courts. In general, however,
California’s doctrine of reversible error requires appellants to
affirmatively demonstrate “the error complained of has resulted
in a miscarriage of justice” in order to obtain relief on appeal.
(Cal. Const., art. VI, § 13; see Code Civ. Proc. § 475 [civil errors
not affecting substantial rights].)
“The phrase ‘miscarriage of justice’ has a settled meaning
in our law, having been explained in the seminal case of People v.
Watson (1956) 46 Cal.2d 818 (Watson). Thus, ‘a “miscarriage of
justice” should be declared only when the court, “after an
examination of the entire cause, including the evidence,” is of the
“opinion” that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error.’ (Id. at p. 836.) ‘We have made clear that a
“probability” in this context does not mean more likely than not,
but merely a reasonable chance, more than an abstract
possibility.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 800; see id. at pp. 801–802 [Watson standard applies
to civil cases and is “essentially congruent with” Code Civ. Proc.,
§ 475].)
We conclude the error here was prejudicial. The court’s
order granting summary judgment for Gluckman rested entirely
on Vanga’s lack of expert testimony to rebut Gluckman’s
declaration. Present counsel has represented that he is in touch
with potential experts whose initial impression is that

17
Gluckman’s actions may have fallen below the requisite standard
of care and caused Vanga’s injuries.6 As the court’s order made
clear its ruling was based not on Vanga’s lack of countervailing
facts but rather the missing expert interpretation of those facts,
we conclude it is reasonably likely Vanga would have achieved a
better result if the court had appointed an expert.

DISPOSITION

The judgment of dismissal is reversed and the matter is
remanded with directions to vacate the order denying
reconsideration and conditionally vacate the order granting
summary judgment. Upon remand, the court is directed to
appoint a medical expert selected by counsel for Vanga to review
Vanga’s records and assist in opposing summary judgment.

6 “I have spoken to at least one Physician and other members
of the medical community who have opined that there is in fact a
likelihood that medical factual premises and opinions exist which
were not presented to the court in opposition to Defendant’s
Motion For Summary Judgment as Plaintiff did not have the
necessary resources, skill or time to present them, which facts
and opinions would constitute new evidence to the extent that
they had never been secured or presented in the case. These
facts and opinions pertaining to the issues before the court
concerning the standard of care for Ophthalmologists similarly
situated to and practicing in the same community [as] Defendant
in this case, as well as causation of damages to the Plaintiff.
Although I am informed and believe that these facts and opinions
exist and constitute new factual evidence, I am not yet in a
position to present them unless or until Plaintiff’s Motion For
Reconsideration is granted on such terms as to make realistic
and practical to engage in the acts of obtaining such and
presenting them to the court.”

18
If, upon reviewing the expert’s declaration and any supplemental
summary judgment briefing the court considers appropriate, the
court concludes Vanga has raised a triable issue of material fact,
the court shall enter a new order denying the motion for
summary judgment. If the court concludes no triable issue exists,
the court shall reinstate the judgment. We express no view
concerning whether Vanga will be able to raise a triable issue
upon remand. Vanga is awarded his costs, if any, on appeal.

HARUTUNIAN, J.*
We Concur:

STRATTON, P. J.

WILEY, J.

* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

19